PACE BUILDERS (M) PVT. LTD Vs. T.SUYAMBURAJ

JUDGEMENT

(1.) This civil revision petition has been filed to set aside the judgment and decree dtd. 12/1/2005 in OS.No.10 of 2004 on the file of the Subordinate Judge, Poonamallee.

(2.) The petitioner is the third party to the suit filed by the first respondent as against the respondents 2 to 6 herein for specific performance on the strength of the agreement for sale dtd. 29/1/1993. The respondents 2 to 6 failed to appear before the trial court and as such, they were set exparte. Hence, the suit was decreed by the judgment and decree dtd. 12/1/2005 as prayed for. The petitioner is being the third party to the suit, challenging the judgment and decree, the present civil revision petition has been filed under Article 227 of the Constitution of India.

(3.) The learned counsel for the petitioner would submit that the petitioner is a Private Limited Company doing business of promotion and development of multi storeyed building as a joint venture. The entire extent of five acres of land comprised in survey Nos.224/1, 224/2 and 225 comprised in Padi Village belongs to the second respondent herein and six other persons. The entire land has been developed by the petitioner along with one Ben Foundation. In the total extent of the land, undivided share of one acre and 30 cents belonged to the second respondent herein. The entire extent of the land admeasuring 5 acres was acquired by the Tamilnadu Housing Board. Award has been passed in award No.4 of 1981. The possession of the suit property was taken over by the Tamilnadu Housing Board on 23/1/1982. In the meanwhile, original owners of the land had entered into an agreement for sale on receipt of advance amount. On the strength of the said agreement, the first respondent herein filed suit for specific performance in OS.No.10 of 2004. No suit summons was served on the respondents 2 to 6 herein and paper publication was ordered. After effecting paper publication, they were called absent and set exparte. In pursuant to the said exparte, exparte judgment was passed by the trial court. During the year 2005, the erstwhile owners of the said lands also filed writ petition before this Court in WP.No.15248 of 2005 seeking direction to reconvey the acquired lands. This Court, by order dtd. 29/4/2005, allowed the writ petition and directed the State Government to reconvey the said property to the erstwhile land owners. It was also confirmed by the Hon'ble Division Bench of this Court and confirmed by the Hon'ble Supreme Court of India in SLP.No.12165 of 2007. 3.1He further submitted that after filing contempt petition, the reconveyance was made by the Tamilnadu Housing Board to the erstwhile owners including the suit property to an extent of 1.30 acres comprised in survey No.224/1 situated at Padikuppam Village, Ambattur Taluk. Thereafter, it was sold by the third respondent in favour of one, Kumaravel. Thereafter, from the said Kumaravel, the petitioner company obtained power of attorney on 26/2/2009 and entered into agreement for development along with adjacent lands. At that juncture, the petitioner company came to know about the notice issued in execution petition in EP.No.23 of 2009 in OS.No.10 of 2004. In the execution petition, notices were issued to all the defendants in the suit. Then only, they came to understand about the exparte decree and they filed petition to set aside the exparte decree with delay of 1587 days. However, the trial court dismissed the said petition and the same was confirmed by this Court. As far as the petitioner is concerned, it was not aware of the legal proceedings since there was no encumbrance at all in respect of the suit property. It entered into a joint venture agreement with the said Kumaravel who is the purchaser of the said property from the respondents 3 to 6 herein as early as on 5/10/2007. Thereafter, the petitioner obtained power of attorney in order to develop the said property and obtained planning permission as well as building permission. 3.2He further submited that as per the permission, the petitioner paid a sum of Rs.7,72,55,000.00~ towards development charges to CMDA together with security deposit and other charges for the multi storeyed building having 223 dwelling units to be erected. The construction of the multi storeyed bulding for the entire extent of 5 acres of land including the petitioner-s land was almost completed and from time to time, flats were allotted to the buyers along with registration of their undivided share in the lands. While being so, the petitioner received notice dtd. 27/3/2013 from the counsel in order to take possession of the property. He further submitted that the first respondent also filed suit in OS.No.243 of 2014 on the file of the District Munsif Court, Ambattur challenging the power of attorney executed by the second respondent in favour of others and also challenging the bulding permission given by the Corporation and approval of the building plan given by the CMDA as null and void. The petitioner filed written statement and it is pending for trial. The suit for specific performance in OS.No.10 of 2004 itslef is barred by limitation. Therefore, the trial court ought not to have decreed the suit though the defendants were set exparte. The judgment and decree also not in consonance with the provision contemplated under Code of Civil Procedure. In support of his contention, he relied upon the judgment in the case of Raj Shri Agarwal @ Ram Shri Agarwal and another Vs. Sudheer Mohan and others reported in 2022 LiveLaw (SC) 864.